Opposition with all exhibits attached
thereto.......................................3

Affirmation of Jeff D. DeFrancisco, Esquire in Response to Affirmation in

Opposition, with all exhibits attached
thereto......................................4

The proposed claim, not verified and signed by Movant's counsel, asserts that
Defendant, at the State University of New York Health Science Center
(hereinafter SUNY) in Syracuse, negligently performed surgery on Movant's left
breast on October 13, 1999, leaving surgical gauze in Movant's breast, which
resulted in Movant suffering pain and ultimately the loss of half of her left
breast and nipple. The proposed claim also asserts a cause of action for
failing to properly inform Movant of the dangers associated with the surgery
that was performed on October 13, 1999.

A proposed claimant who fails to timely file and serve a claim or serve a
notice of intention may be permitted, upon application and in the discretion of
the court, to file a claim which complies with Section 11 of the Court of Claims
Act, at any time before an action asserting a like claim against a citizen of
the state would be barred under the provisions of article two of the CPLR.
(Court of Claims Act §10(6)) Movant never served a notice of intention and
no claim was ever served or filed in this matter. Movant's late claim
application is timely. (Court of Claims Act §10(6); CPLR 214-a)

Moving to the substantive analysis, to determine whether an application for
permission to file a late claim should be granted, consideration must be given
to the six factors listed in Court of Claims Act §10(6), and any other
relevant factors. The presence or absence of any one factor is not
determinative. (Bay Terrace Cooperative Section IV, Inc., v New York State
Employees' Retirement System, Policemen's and Firemen's Retirement System,
55 NY2d 979; Ledet v State of New York, 207 AD2d 965) Instead, it is a
balancing of all of the factors by the Court which may warrant the granting of
the application to file and serve a late claim.

Movant's counsel asserts as an excuse for Movant's failure to timely serve a
notice of intention or to file and serve a claim in accordance with Court of
Claims Act §10 that she could not have discovered the existence of a
foreign body in her left breast until April 6, 2000, the date a sonogram was
performed on Movant's breast indicating six small areas containing fluid and
debris. Assuming for the moment that the cause of Movant's left breast
discharge, pain, infection, and abscesses was surgical gauze, obviously Movant
could not have discovered this on her own. Accordingly, a claim based upon
complications from the existence of a foreign body remaining from surgery could
be a reasonable excuse for the delay.(See, Davis v State of New
York, 84 Misc 2d 597)

Turning to whether the State had notice, an opportunity to investigate the
facts underlying the proposed claim, or whether the State would suffer prejudice
if the application was granted, these factors, being interrelated, will be
considered together. Movant does not assert that the State had notice; however,
her attorney claims that the defendant had ample opportunity to investigate the
underlying claim and will not suffer any prejudice if the application is
granted. Defendant does not address these factors. There is no indication
that the State had any notice of the facts underlying the claim, or any
opportunity to investigate. Despite this, it appears the State would suffer no
prejudice if the application were granted. There are certainly medical records
from Movant's surgery on October 13, 1999, which would permit the State to
identify witnesses, and investigate the circumstances surrounding the surgery
and post-operative care of the movant. The record, coupled with Defendant's
failure to assert prejudice, leads the Court to find that this factor weighs in
favor of Movant's application.

The next factor, whether the claim appears to be meritorious, is referred to as
the most essential factor. Unlike a party who has timely filed a claim, one
seeking permission to file a late claim has the heavier burden of demonstrating
that the proposed claim appears to be meritorious. (See, Nyberg v State of
New York, 154 Misc 2d 199) Generally a proposed claim meets this standard
if it is not patently groundless, frivolous, or legally defective, and upon
consideration of the entire record there is cause to believe that a valid cause
of action exists. (Santana v New York State Thruway Authority, 92 Misc
2d 1, 11) Movant has apparently had a history of breast abscesses prior to
October 1999. (Defendant's affirmation, Exhibit B) The surgery performed at
SUNY was done on October 13, 1999. Allegedly her problems began in March 2000,
when she was seen at Lee Memorial Hospital for chest pain. A sonogram was
performed by St. Joseph's Imaging Associates on April 6, 2000 which
indicated:

The sonogram of the left breast is markedly abnormal, showing at least six
small areas which contain fluid mixed with debris. The etiology of these fluid
collections is uncertain. They could represent very dilated ducts, they could
represent inflammatory process such as small abscesses. Within the middle of
all of these cystic structures is an echogenic area which appears to be somewhat
lobulated, linear in nature and has no through transmission. This raises the
possibility that this may represent a foreign body such as a piece of gauze. It
is also possible that this could represent suture material related to the
surgery. (Exhibit F, DeFrancisco Affirmation)

Movant later had a lumpectomy performed at Community General Hospital on May 4,
2000 and the pathology report of the removed tissue and fluid areas indicated,
"Ruptured epidermal inclusion cyst with associated fibrosis, acute and chronic
inflammation and foreign body reaction."

There is no indication from the documents attached to Movant's application that
surgical gauze was actually found in claimant's breast. Although it was listed
as a possible component of the areas of fluid seen in her left breast during the
sonogram, the pathology report does not list surgical gauze as a component.
Reference to a foreign body reaction, does not alone create reasonable cause to
belief that surgical gauze was left in movant's breast during surgery at SUNY
almost seven months earlier. There is no affidavit from anyone with knowledge
of the facts to rule out the possibility that Movant had other surgical
procedures between October 1999 and April 2000, or assuming surgical gauze was
left in Movant's left breast, to indicate that it was from the surgery performed
by the SUNY in October 1999, as Defendant points out. In his responding
affirmation, Movant's attorney asserts that Defendant's position is mere
speculation. Given the fact that the Court has no sworn documents from anyone
with knowledge of the facts and no documents indicating that a foreign body such
as surgical gauze was found in Movant's breast, it would be mere speculation on
the part of the Court to find that Movant has shown reasonable cause to believe
that a valid cause of action exists.

The final factor to be considered is whether Movant has any other available
remedy. Movant's counsel asserts that she has no other remedy. This very well
may be the case, however it is impossible to tell based upon the information
provided.

Upon balancing all of the factors in the Court of Claims Act §10(6), this
Court DENIES without prejudice movant's application for permission to file and
serve the proposed claim.